Citation NR: 9636271
Decision Date: 12/24/96 Archive Date: 01/02/97
DOCKET NO. 95-08 997 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Veteran represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Conner, Associate Counsel
INTRODUCTION
The veteran had active service from February 1971 to July
1972. He is the recipient of the Purple Heart Medal.
This matter comes to the Board of Veterans’ Appeals (Board)
from a February 1993 rating decision of the Department of
Veterans Affairs (VA) Portland Regional Office (RO), which
denied his claim of service connection for PTSD. In
September 1996, the veteran testified before the undersigned
member of the Board at the RO.
REMAND
In Moreau v. Brown, 9 Vet.App. 389 (1996), the U.S. Court of
Veterans Appeals (Court) set forth the analytical framework
for establishing the presence of a recognizable stressor, the
essential prerequisite to support a diagnosis of PTSD and
entitlement to service connection. There are two major
components to the analysis: First, whether the evidence
demonstrates that stressful events occurred; second, whether
the stressful events are sufficient to support a diagnosis of
PTSD.
With regard to the first component of the Court’s analysis
under 38 U.S.C.A. § 1154(b), the evidence necessary to
establish the occurrence of a recognizable stressor during
service will vary depending on whether the veteran “engaged
in combat with the enemy.” See Hayes v. Brown, 5 Vet.App. 60
(1993). In this case, the veteran’s Purple Heart Medal is
sufficient to establish that the veteran was subjected to a
stressor in service. 38 C.F.R. § 3.304(f) (1995).
However, even if there was a stressful event in service, the
RO or the Board must nevertheless determine whether the
stressful event was of sufficient gravity to support a
diagnosis of PTSD under the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental
Disorders. Zarycki v. Brown, 6 Vet.App. 91 (1993). In
West v. Brown, 7 Vet.App. 70 (1994), the Court held that the
sufficiency of the stressor is a medical determination.
Adjudicators may not render a determination on this point in
the absence of independent medical evidence. Colvin v.
Derwinski, 1 Vet.App. 171, 175 (1991).
The veteran was afforded a VA psychiatric examination in June
1992. During the examination, he described an incident
during his service when his leg was severed below the knee
during an attack by the North Vietnamese. The diagnosis was
recurrent major depression; the examiner concluded that the
veteran did not meet the criteria for PTSD. However, the
examiner noted that the veteran’s claims folder was not
available for review in conjunction with the examination. In
addition, on a February 1992 PTSD questionnaire, the veteran
indicated that he had been treated for nervous and emotional
disorders at VA facilities in Loma Linda, Sepulveda, Long
Beach, and Wilshire, California and in White City, Oregon.
It appears that these treatment records have not been
associated with the claims folder.
The VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The
duty to assist the veteran in obtaining and developing
available facts and evidence to support his claim includes
obtaining an adequate VA examination. This duty is neither
optional nor discretionary. Littke v. Derwinski, 1 Vet.App.
90 (1990). The fulfillment of the statutory duty to assist
includes conducting a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet.App. 121, 124 (1991).
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to the claim, this case is
REMANDED for the following action:
1. The RO should contact the veteran and
obtain the names and addresses of all
medical care providers who treated the
veteran for PTSD since service. After
securing the necessary release, the RO
should obtain these records.
2. The RO should contact the VA medical
facilities in Loma Linda, Sepulveda, Long
Beach, and Wilshire, California and in
White City, Oregon and secure copies of
all clinical records pertaining to
treatment of the veteran’s psychiatric
disorders since his separation from
service.
3. The RO should then arrange for the
veteran to be scheduled for a VA
psychiatric examination by a psychiatrist
who has not previously examined him, to
identify his symptoms and determine the
diagnoses of all psychiatric disorders
that are present. The examination report
should reflect a review of pertinent
material in the claims folder. A
definitive diagnosis is imperative. If
the diagnosis of PTSD is deemed
appropriate, the examiner should specify
(1) the factors relied upon to support
the diagnosis; (2) the specific
stressor(s) that prompted the diagnosis;
and (3) whether there is a link between
the current symptomatology and one or
more of the in-service stressors. The
report of examination should include the
complete rationale for all opinions
expressed. All necessary special studies
or tests should be accomplished. The
claims folder must be made available to
the examiner for review in conjunction
with the examination.
When the aforementioned development has been completed, the
case should be reviewed by the RO. If the benefit sought on
appeal is not granted, the veteran and his representative
should be provided with a supplemental statement of the case
and the opportunity to respond. Thereafter, the case should
be returned to the Board for further appellate consideration.
RENÉE M. PELLETIER
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
- 2 -